IDEAS & TRENDS

IDEAS & TRENDS; The Right to Bear Arms: A Working Definition

By RICHARD BERNSTEIN

Published: January 28, 1990

Correction Appended

FOR the American gun lobby, ''the right to keep and bear arms'' in the Second Amendment has become such a familiar refrain that the entire text is often overlooked: ''A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.''

While opponents of gun control, led by the National Rifle Association, stress the second half of the sentence, gun control advocates argue that the first half clearly indicates that the framers intended to protect a state's right to maintain organized militias, not to give Americans the right to whatever arms they want, including Saturday night specials and automatic assault rifles. For years debate over the amendment has been frozen in place with supporters and opponents of gun control adamantly backing one interpretation or the other. But in the December issue of The Yale Law Review, a professor who describes himself as a card-carrying member of the American Civil Liberties Union and an advocate of gun control has recast the issue along different lines. The author, Sanford Levinson, argues that the Second Amendment offers neither side the refuge it seeks. Ultimately, he says, society must decide the issue of gun control on practical as well as on constitutional grounds.

''The amendment might not permit the extent of gun control that most of us - that is, liberal academics - would like,'' Professor Levinson, who teaches constitutional law at the University of Texas, said in an interview. ''The N.R.A. argument that it permits no control at all is nonsense. Even the A.C.L.U. admits that there are circumstances when you can take away somebody's freedom of speech. So, the issue is to what extent does the Second Amendment permit the Government to do what it wants in controlling firearms, just as we have to establish the extent to which it can limit speech or break into your house without a warrant.''

In the article, Professor Levinson takes what might be seen as a liberal's reluctant look at the amendment, and concludes that it has been dismissed too quickly by advocates of gun control. Most members of the legal academy, he says, particularly the liberals, ''have treated the Second Amendment as the equivalent of an embarrassing relative whose mention brings a quick change of subject.'' He contends that there are reasons for thinking that the amendment does indeed apply not only to state militias but also to individuals.

If the framers of the Constitution intended to protect state militias only, he asks, why did they not simply say, ''Congress shall have no power to prohibit state-organized and directed militias''? At the time of the Bill of Rights, he notes, the militia was virtually synonymous with the idea of armed independent yeomen. The militia was, he says, each and every person.

Moreover, Professor Levinson said many of his fellow liberals are being inconsistent in opposing a constitutional right to firearms. When it comes to other constitutional protections, he says, like free speech or the rights of criminal defendants, many liberals are ready to pay the social costs - speech insulting to minorities, for example, or the failure to convict some criminals. Taking rights seriously, he writes, could mean ''that one will honor them even when there is significant social cost in doing so.''

Of course, opponents of a right to bear arms still find compelling reasons for their position. In the same issue of the Yale Law Review, Wendy Brown, a feminist legal scholar at the University of California at Santa Cruz, writes that the supposed ''right'' to bear arms will actually go to the empowered members of society - the ''socially male'' - and will be used against the weak, women and minorities.

Constitutional Exegesis

Laurence H. Tribe, a professor of constitutional law at Harvard, argues that the courts have decided overwhelmingly against a universal right to bear arms. Even if one existed, he said in an interview, ''that would not prevent reasonable regulation from being upheld.'' Consider legislation governing car ownership, he said. The Constitution protects private property but it allows speed laws. Similarly, it could protect gun ownership while allowing regulation.

Professor Levinson does not argue with that position. Ultimately he suggests that the decision on how society should regulate guns must go beyond constitutional exegesis.

Supporters of gun control point out that people using guns are responsible for a lion's share of the 40,000 murders in the United States each year. And, they note, guns kept in the home for self-protection often end up being used - accidentally or otherwise - to harm family members.

But Professor Levinson argues that police departments have shown themselves increasingly incapable of protecting citizens from criminals. The practical consequence of gun control could be harmful, he said, because it could deprive innocent people of their ability to protect themselves while criminals would get guns anyway.

President Bush, who is a member of the N.R.A., seemed to take this tack at a news conference last week.

''I don't happen to believe,'' he said, ''that banning of weapons will take them out of the hands of the criminals, and we've seen state law after state law violated by the bad guys getting the weapons.''

Photos: At a firing range in Texas (Black Star/Shelly Katz); statue of a Minuteman, the Revolution's citizen soldier, in Concord, Mass. (Maggie Berkvist)

Correction: February 4, 1990, Sunday, Late Edition - Final An article last Sunday on the right to bear arms misstated the annual number of murders in the United States. In recent years there have been just over 20,000.